Holidays with Pay (Agriculture) Convention, 1952 (No. 101) - Caribbean Part of the Netherlands

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Previous comment on Convention No. 101

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 14 (Weekly rest (industry)), 101 (Holidays with pay (agriculture)) and 106 (Weekly rest (commerce and office)) together.

1.Weekly rest.

Articles 1 and 3 of Convention No. 14 and Articles 2 and 5 of Convention No. 106. Scope of application. In its previous comments, the Committee requested the Government to indicate how the entitlement to weekly rest is regulated for those categories of workers which are excluded from the scope of the Labour Act (Arbeidswet) 2000 BES: small traders (section 1(2)(b)), dock workers (section 1(2)(i)) civil servants (section 1(2)(j)) and employees with high incomes (section 3(1)), all of which are covered by the Conventions. The Committee notes that the Government indicates in its report that there are currently no legal provisions providing for working time and rest periods for these groups, but that in the context of a gap analysis between the Labour Act and the European Netherlands Working Hours Act, this issue will be examined in more detail, with possible amendments to the legislation. Moreover, the Committee notes that section 1(2)(a) of the Labour Act also excludes from its scope of application the work performed by the head or the director of the company and his spouse or first-degree blood relatives or performed by persons not being the head or the director, who have the same powers as the head or the director. In this respect, the Committee recalls that: (i) persons holding managerial positions may not be excluded from the scope of Convention No. 14 (contrary to what is expressly provided in Article 5 of Convention No. 106); and (ii) both Conventions only allow for an exception to the weekly rest entitlement in undertakings or establishments in which only the members of one single family are employed. The Committee requests the Government to indicate the measures taken or envisaged to ensure that any exceptions to the weekly rest entitlements are limited to those permitted under the Conventions, so that all categories of workers covered by the Conventions effectively enjoy a weekly rest period of at least 24 hours. It also requests the Government to provide information on any development in this respect, including the revision of the relevant legislation.

Article 4 of Convention No. 14 and Articles 7 and 8 of Convention No. 106. Exceptions. Circumstances and consultations. The Committee notes that according to section 27 of the Labour Act further exceptions may be granted for a specific industry or type of work regarding several working time provisions, including section 9 on weekly rest. The Committee requests the Government to provide further details regarding the application in practice of section 27 of the Labour Act, including the extent of these exceptions and the precise circumstances under which resort to them is made as well as the categories of workers concerned. It also requests the Government to indicate how it ensures that exceptions to weekly rest entitlements are made in consultation with representative employers and workers’ organizations, where such organizations exist, as required by the Conventions.

Article 5 of Convention No. 14 and Articles 7(2) and 8(3) of Convention No. 106. Compensation. In its previous comments, the Committee requested the Government to consider revising relevant legislation in order to guarantee that any deviations from the ordinary weekly rest schedule would be compensated with extra time off irrespective of any monetary compensation. As a reply, the Government refers to the above-mentioned gap analysis between the Labour Act and the European Netherlands Working Hours Act, indicating that this analysis could lead to a revision of the legislation. The Committee requests the Government to indicate the measures taken or envisaged to ensure that, as far as possible, in case of exceptions to weekly rest, compensatory rest is granted of a total duration of at least 24 hours in the course of each period of seven days. It also requests the Government to provide information on any development in this respect, including the revision of the relevant legislation.

2.Holidays with pay.

Article 5(d) of Convention No. 101.Public and customary holidays and temporary interruptions due to sickness or injury not to be counted as part of annual holiday. In its previous comments, the Committee requested the Government to consider the possibility of revising section 3 of the Holiday Act, under which the entitlement to annual holiday is forfeited if the worker has been absent from work for a period of at least six months due to sickness or accident, to bring it into conformity with the requirements of this Article of the Convention. In its report, the Government refers to the above-mentioned gap analysis between the Labour Act and the European Netherlands Working Hours Act and indicates that a possible legislation revision could follow. The Committee also notes that neither the Labour Act nor the Holiday Act seem to contain provisions on the exclusion from paid annual leave of public and customary holidays. The Committee requests the Government to indicate the measures taken or envisaged in order to ensure that where appropriate, provision is made to exclude from the annual holiday with pay in agriculture the public and customary holidays and weekly rest periods, and, to such extent as may be determined in accordance with the established procedure, temporary interruptions of attendance at work due to such causes as sickness or accident. It also requests the Government to provide information on any development in this regard, including the revision of relevant legislation.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 5(d) of the Convention. Temporary interruptions due to sickness or injury not to be counted as part of annual holiday. The Committee notes the Government’s statement that with respect to Bonaire, St Eustatius and Saba – which as from October 2010 have become the Caribbean Part of the Kingdom of the Netherlands – the Convention is applied through the Holiday Act (Vakantiewet) 1949 BES. The Committee notes, in this connection, that under section 3 of the Holiday Act, the entitlement to annual holiday is forfeited if the worker has been absent from work for a period of at least six months due to sickness or accident. The Committee recalls, in this respect, that the Convention requires that any period of annual paid leave, which may not be taken (for instance due to sickness or injury), be deferred but not lost, in whole or in part, or compensated (except in the case of termination of employment). In addition, the Committee understands that a similar provision was found in the legislation applicable to the European Part of the Netherlands but has recently been modified to permit an employee to acquire full annual leave even in the case of long-term sickness. The Committee accordingly requests the Government to consider the possibility of revising section 3 of the Holiday Act to bring it into conformity with the requirements of this Article of the Convention.